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OVERALL v. KLOTZ

March 17, 1994

CAROL OVERALL, Plaintiff,
v.
LEOPOLD HUGO PAUL KLOTZ, Defendant.


Sprizzo


The opinion of the court was delivered by: JOHN E. SPRIZZO

SPRIZZO, D.J.,

 This is a diversity action for assault and battery, false imprisonment and intentional infliction of emotional distress based on conduct that plaintiff alleges occurred during the period 1947 through 1949. Defendant has moved for summary judgment dismissing plaintiff's complaint because plaintiff failed to commence this action before the expiration of the statute of limitations. For the reasons that follow, defendant's motion is granted.

 BACKGROUND

 The facts, denied by the defendant, but assumed to be true for purposes of this motion, are as follows. Plaintiff Carol Overall ("Overall") was born in New York City on November 8, 1942 to defendant Leopold Hugo Paul Klotz ("Klotz") and his former wife Vera Montgomery Klotz. Complaint P 6. After the divorce of her parents in 1947 and until March 1950, Overall lived under her father's supervision in Dallas, Texas. Complaint P 12. Overall claims that during that period, Klotz beat and sexually assaulted her regularly, Complaint PP 13-17, and that he threatened to dismember, burn, mutilate and/or kill Overall if she reported his actions. Affidavit of Carol Overall sworn to October 7, 1992 ("Overall Aff.") PP 9-10, 18. Overall also alleges that Klotz continued to abuse her by sending her to a convent boarding school in Arcadia, Missouri for the 1948-49 school year, Complaint PP 18-19, and to another convent boarding school in Mississippi for part of the 1949-50 school year. Complaint PP 20-21.

 In approximately March 1950, Overall's mother regained custody of her daughter and brought her back to New York City to live with her and her new husband John Overall, Jr. and their two children. Complaint P 21; Deposition of Carol Overall, annexed to Bayda Decl. ("Overall Dep.") at 49-50. Overall alleges that, because Klotz threatened to harm or kill her if she ever disclosed his actions to another person, she suppressed all memory of her father's abuse until May 1990 and was unable to confront him with her memories until June 1991. Complaint P 11; Overall Aff. PP 26, 35, 38.

 Overall's contact with Klotz during her adolescence dwindled thereafter to two or three visits to Klotz's office made at her mother's direction to ask for money for school trips. Overall Aff. PP 27-28. In her adult life, Overall encountered her father at least twice in unplanned meetings in and around New York City. Overall Aff. P 29; Overall Dep. at 81-82. Plaintiff alleges that she once met Klotz while both were waiting for a bus going to upstate New York. Overall Aff. P 29; Overall Dep. at 82-83. She and Klotz sat together on the bus and allegedly discussed the topics of Hitler, financial stability, and business travel. Overall Aff. P 29; Overall Dep. at 83. On another occasion, Overall alleges that she met her father at a dinner dance at the home of an ambassador. Overall Aff. P 29; Overall Dep. at 83-84. Overall alleges that her father did not recognize that she was his daughter and that, when she danced with him, Klotz made sexual advances toward her, which she repelled. Overall Dep. at 84.

 Overall admits that she also sought meetings with Klotz on certain occasions. In 1981, a year during which Overall alleges she was experiencing stressful personal and financial problems, Overall went to Klotz's home to request financial assistance. Klotz gave her $ 2,000 at that time to help her move to California. Overall Dep. at 68, 88-91. In addition, in June 1991, after Overall allegedly regained her memory of the events of 1947-1950, Overall alleges that she visited Klotz to discuss his abusive treatment of her and to ask for money. Overall Dep. at 91, 93-97.

 According to the Complaint, Klotz's threats, together with his abusive acts, induced in Overall a psychological condition which caused her to repress the memory of Klotz's acts and to be unable to understand his abuse. Notwithstanding her memory suppression, plaintiff asserts that the effects of her father's abuse have been manifested in various aspects of her personal and professional life. To wit, Overall claims that Klotz's abuse has afflicted her with feelings of terror, insecurity, and worthlessness, and caused her to never marry, have children or develop a career, and to be attracted to men who emotionally and physically abuse her. Overall Aff. PP 30-32.

 Despite this pattern of psychological and emotional problems throughout her adult life, Overall did not seek professional advice and treatment until the age of forty-six, when in March 1988, after the death of her half-brother, Overall consulted Dr. Judith Schwartz, a psychotherapist. Affidavit of Judith Schwartz dated October 8, 1992 ("Schwartz Aff.") P 3. Dr. Schwartz diagnosed Overall as suffering from a post-traumatic stress disorder and a borderline personality disorder with histrionic features, Schwartz Aff. P 19, a diagnosis that has been confirmed by plaintiff's expert psychiatrist. Affidavit of Stuart Grassian, M.D., dated October 7, 1992 ("Grassian Aff.") P 4.

 Overall alleges that, through this therapy, she began in May 1990 to regain her memory of Klotz's alleged abuse. Overall Aff. PP 35-36. In April 1991, Overall told her mother that her father had sexually abused and traumatized her when she lived with him in Texas and that she intended to confront her father and ask him for financial assistance. Overall Aff. P 37; Overall Dep. at 132-33. Two months later, in June 1991, Overall confronted Klotz with accusations of abusive treatment and asked him for financial assistance. Overall Dep. at 91, 94-97.

 Finally, on March 26, 1992, Overall commenced this action. Although Overall's Complaint alleged ten causes of action, she has withdrawn all but three claims, which are framed as assault and battery (Count I), false imprisonment (Count III), and intentional infliction of emotional distress (Count IV). Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment ("Pl. Mem.") at 3 n.1. Klotz has moved for summary judgment dismissing the Complaint on the ground that each of Overall's claims is barred by the applicable statute of limitations.

 DISCUSSION

 Summary judgment may be granted only where "there is no genuine issue as to any material fact" and a party is "entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). On a motion for summary judgment, this Court is not to weigh evidence and make credibility findings, but rather to determine whether or not there exists a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). As the Supreme Court stated in Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), however, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. Summary judgment on the ...


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